back to article FBI ends second iPhone fight after someone, um, 'remembers' the PIN

For the second time, the FBI has dropped a legal attempt to force Apple to unlock an iPhone at the last minute. Earlier this month, the FBI backed away from the high-profile San Bernardino case the day before it was due in court by claiming it had paid a third party (apparently $1.2m) to unlock the phone. This time it's a …

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  1. Marketing Hack Silver badge
    Holmes

    Q: How is the government ever going to convict bad guys without access to encryption?

    1. Witnesses

    2. Seized illicit materials (guns, drugs, etc.)

    3. Plea bargaining (like this case)

    4. Good old-fashioned wiretaps

    5. Forensics

    6. Seized documents

    7. Surveillance

    8. Sting operations

    I guess all that worked this time! Sherlock would approve.

    1. Mark 85 Silver badge

      Re: Q: How is the government ever going to convict bad guys without access to encryption?

      Well.. they had the bad guy convicted and waiting for sentencing so the phone wasn't needed for that. So, yes... the things Sherlock would approve of.

      1. Anonymous Coward
        Anonymous Coward

        Re: Q: How is the government ever going to convict bad guys without access to encryption?

        The problems come when the materials involved in a crime are not themselves illegal until the crime has been committed.

        Arrest someone in possession of a truck load of cocaine, you've got them bang to rights.

        Arrest someone with a truck load of diesel and a pile of fertiliser at home and you've got nothing on them. They're free to go, and they can mix the two together and go off and blow up a federal building or something.

        1. Anonymous Coward
          Anonymous Coward

          Re: Q: How is the government ever going to convict bad guys without access to encryption?

          "The problems come when the materials involved in a crime are not themselves illegal until the crime has been committed."

          Excuse me, but why is this a "problem"? Do you not believe in the presumption of innocence?

          As one example, there's more than enough diesel and fertilizer in my garage to make a hefty boom, but they're both there for legitimate purposes. Should I be arrested?

          Somewhere in my basement is several pounds of silver powder. It was recovered from photographic solution, and kept because: silver! It can make a big boom too. Should I be arrested?

          A rough estimate of my equipment inventory has me probably having about 100F worth of capacitors here. Those can...

          Off the top of my head I can make 13 different nerve agents from the household cleaning products in my house. I have more than enough equipment to make rail guns, coil guns, hell, if I put my mind to it I could build a fairly bitchin' hybrid particle accelerator that would put out a mighty bang!

          Hell I can probably bind the diesel to (or for that matter, the silver powder) and create a thermobaric device if I put my mind to it. $Deity only know what the yield on that thing would be.

          These (and more!) are all possible. I have the necessary components and the requisite knowledge. I, and millions more who studied basic sciences and live in middle-class western homes. You live every day of your life surrounded by people with the materials and skill to do major damage. You aren't dead yet.

          Will you lock us all up? Or do we get to retain the presumption of innocence?

          1. zaax

            Re: Q: How is the government ever going to convict bad guys without access to encryption?

            Is the same problem. Is that wheel wrench in the passenger foot well becuase I have just changed a tyre or because I am going to use it to attack someone.

          2. SolidSquid
            Mushroom

            Re: Q: How is the government ever going to convict bad guys without access to encryption?

            Please stand still, our remote aerial bomb disposal unit will be with you shortly

          3. DavCrav Silver badge
            Joke

            Re: Q: How is the government ever going to convict bad guys without access to encryption?

            "As one example, there's more than enough diesel and fertilizer in my garage to make a hefty boom, but they're both there for legitimate purposes. Should I be arrested?"

            No, plenty of farmers for example have Diesel and fertilizer. If I have a large quantity of both and no explanation as to why you need so much Diesel and fertilizer living in a Manhatten apartment, then maybe that should be looked into though.

            "Somewhere in my basement is several pounds of silver powder. It was recovered from photographic solution, and kept because: silver! It can make a big boom too. Should I be arrested?"

            Still no, although I would start to keep an eye on you, since you seem to have a lot of explosiony stuff in your house.

            "Off the top of my head I can make 13 different nerve agents from the household cleaning products in my house."

            I would definitely be keeping an eye on you at this point. That's a worryingly specific number there.

            1. The Mole

              Re: Q: How is the government ever going to convict bad guys without access to encryption?

              So I think you are saying we should keep an eye on anybody who is educated (particularly in Chemistry) just in case? Perhaps the solution is to ban education then people won't be able to write the contents of encrypted communication, problem solved?

              1. energystar
                Alert

                Well...

                The responsible Agency should keep an eye -now and then, depending of activity level- on anybody who is educated in Chemistry of Explosives, just in case.

                1. Nick Ryan Silver badge

                  Re: Well...

                  The responsible Agency should keep an eye -now and then, depending of activity level- on anybody who is educated in Chemistry of Explosives, just in case.

                  That will include pretty much anybody with even a half reasonable education in chemistry then.

                  Making things go boom, and the formulas for these are generally quite simple. Particularly if you're the kind of "making things that go boom" person who doesn't really care too much about toxic residue or the overall efficiency of the boom as long as it goes adequately boom.

                  1. energystar
                    Headmaster

                    Re: Well...

                    "...pretty much anybody with even a half reasonable education in chemistry..." Doesn't expend his|her life in explosives' related activities. It's not only relation -we are related here just by writing the coursed word-, it's the building-up of a profile [and that build-up can complete in days, sometimes].

                2. Anonymous Coward
                  Anonymous Coward

                  Re: Well...

                  "The responsible Agency should keep an eye -now and then, depending of activity level- on anybody who is educated in Chemistry of Explosives, just in case."

                  When I was at school in the '70s that would be at least a quarter of the school population (I'm guessing modern Health & Safety regulations have made chemistry classes much less exciting nowadays). How many millions of people are you going to watch?

                3. Mark 85 Silver badge

                  @energystar -- Re: Well...

                  The responsible Agency

                  Define "responsible" please? Here in the States we have tons of agencies. Depending on the definition, responsible isn't in their vocabulary.

                  1. energystar
                    Pirate

                    Define "responsible" please?

                    Ease one. The one with the most people fired, when all the mess hit climax.

                4. Trevor_Pott Gold badge

                  Re: Well...

                  "The responsible Agency should keep an eye -now and then, depending of activity level- on anybody who is educated in Chemistry of Explosives, just in case."

                  That's ludicrous. Unless the person has done something suspicious they should absolutely not have their privacy invaded by the state. That is what the presumption of innocence is all about!

                  Getting an education is not suspicious, what the fuck horrible backwards-ass society do you live in?

                  I hope everyone who thinks like you moves to an island somewhere and dies of sheer stupidity.

                  1. energystar
                    Windows

                    "...and dies of sheer stupidity."

                    Every single generation of an evolutive process has to prove viable. Maybe, at some future point, presumption of innocence settles as an absolutely respected principle, and nobody 'breaths' over our shoulder, anymore.

                    Yea, this could be sheer stupidity, also.

                  2. energystar
                    Big Brother

                    Re: Well...

                    "...Unless the person has done something suspicious..." How could They know, if not watching You?

            2. energystar
              Pint

              Rambo?

              [On the rocks?]

          4. tom dial Silver badge

            Re: Q: How is the government ever going to convict bad guys without access to encryption?

            Based only on the claims made there is nothing that would bring you to the attention of any police agency, whether local or federal. Absent anything else, you almost surely are safe from more surveillance than the general population, which despite the hubbub really is not very much.

            If, on the other hand, you had been seen to be generating explosions not associated with appropriate and lawful activities like stump removal, or to have appeared to conduct transactions with others under suspicion of criminal activity, it might well elicit law enforcement interest. If their cursory, and then more careful, observation indicated there might be a problem, they might seek, and be granted a search warrant; that warrant might include the contents of your computers and cell phones and perhaps lead to a court order for help in accessing it. Even with that, though, you would be entitled to the formal presumption of innocence, a presumption that would continue even if you were to be charged with a crime, and tried, right up until there was a finding of guilt by a jury or, at your option, a judge.

            On the other hand, if you happened to leave a few thousand dollars in cash in plain sight, law enforcement officials might bring in a talented dog to signal the traces of illegal drugs inevitably present on US cash. The money then might be charged with participation in a crime and seized, leaving you to prove, at considerable effort and expense, that you held it legitimately. The risk of that type of action probably equals or exceeds that of phone seizure and access.

            1. energystar
              Boffin

              Thanks, Tom

              "Absent anything else, you almost surely are safe from more surveillance than the general population, which despite the hubbub really is not very much."

        2. PeteA

          Re: Q: How is the government ever going to convict bad guys without access to encryption?

          ... or free to put the diesel in the tractor they use to spread the fertiliser onto their fields.

    2. Velv Silver badge
      Big Brother

      Re: Q: How is the government ever going to convict bad guys without access to encryption?

      Never lose sight of why the FBI really wanted access to his phone. Hint, it wasn't to convict him.

      It was to find his contacts - to find the other drug dealers and users he was interacting with so they know who to conduct the above searches against.

      1. Bloodbeastterror

        Re: Q: How is the government ever going to convict bad guys without access to encryption?

        "users he was interacting with"

        So I guess that any call or text wasn't logged with its destination number in the guy's call logs held by his phone service provider and freely available to the police?

        1. Alistair Silver badge
          Windows

          Re: Q: How is the government ever going to convict bad guys without access to encryption?

          Umm.

          Chat applications. Skype.

          CDR's *don't* always have low level connection data for *all* processes on the phone, and you don't need to use your phone as a phone to communicate.

          Yes, they were after his contacts, **and** the content of the communications he had with those contacts.

        2. Rory B Bellows

          Re: Users he was interacting with

          @ Bloodbeastterror

          "So I guess that any call or text wasn't logged with its destination number in the guy's call logs held by his phone service provider and freely available to the police?"

          these days a lot of people communicate with apps over wifi, the phone service provider would have no info from those...

        3. Anonymous Coward
          Anonymous Coward

          Re: Q: How is the government ever going to convict bad guys without access to encryption?

          This is 2016. Drug dealers have known for years not to make phone calls except with burners. The access provides them access to the messaging apps, the ones that are otherwise encrypted end to end.

    3. scrubber
      Big Brother

      Re: Q: How is the government ever going to convict bad guys without access to encryption?

      In the UK the government not having 'access to [un]encrypt' is enough to convict.

      While some of my former teachers would probably agree with forgetting being a crime, it seems a bit much to me.

      Why don't the FBI say to Ford that they need a way to remotely lock any vehicle and have it drive itself to the nearest police station? By their logic they can force any company to do anything, right?

      1. energystar
        Stop

        Remember from some years ago...

        Of a device allowing to turn off your motor... [Just in case you go crazy running away].

        1. waldo kitty
          Boffin

          Re: Remember from some years ago...

          Of a device allowing to turn off your motor... [Just in case you go crazy running away].

          they've got that... it is called OnStar... they may even have competitors but i don't recall any in specific right now... they don't even have to disable the vehicle... they can just watch where you go by the eye in the sky and the vehicle's GPS tracking...

    4. Alan Brown Silver badge

      Re: Q: How is the government ever going to convict bad guys without access to encryption?

      "8. Sting operations"

      As long as those sting operations don't involve entrapment (John deLorean was approached by FBI agents wanting to trade cocaine, which is why the case collapsed. He didn't actively seek them out.)

    5. Anonymous Coward
      Anonymous Coward

      a comedian replies

      I think she gets the tone just right. . .

      https://www.youtube.com/watch?v=szN7DlmMLYg (comedian Olivia Lee on Liberty)

  2. Timo
    Big Brother

    this whole unlocking thing kills their bluffs

    The cops seem to use a lot of bluffing to get people to cooperate. If crims know that their phone is encrypted and Apple won't assist in unlocking it, then that takes away a big bluff that the cops surely have had in their pocket.

    Or at least that is how it works on TV...

    1. DougS Silver badge

      Re: this whole unlocking thing kills their bluffs

      They have the terrorist phone unlocked by a third party to point to. Making the cost of over $1 million public was probably not Comey's best move, low level criminals will know the Feds aren't willing to invest that kind of money over a little fish.

      And the cops do use a lot of bluffing and half truths to catch people out, that isn't just on TV. I'm sure they try to claim that if you give up the phone's password voluntarily they'll go easy on you, but if you refuse and make them go to court they'll throw the book at you. The cops don't have ANY ability to decide whether to go easy on you or not, so you'd be stupid to believe such assurances. They rely on the ignorance of the typical criminal, with stuff like trying to get people to talk before they are officially placed under arrest so they can question them without having read them their rights.

      1. Doctor Syntax Silver badge

        Re: this whole unlocking thing kills their bluffs

        "Making the cost of over $1 million public was probably not Comey's best move"

        I hope they kept the receipt.

        1. Marketing Hack Silver badge

          Re: this whole unlocking thing kills their bluffs

          @Timo

          I guess if stuff seen on TV is necessary, the Feds can always call Jack Bauer to come on over and rough up some suspects!

  3. DougS Silver badge

    They'll keep trying

    They will likely pick another case in the same judicial district as the San Bernadino case, where they already had a favorable lower court ruling, and ignore the NY district where it went against them. If they do that and then lose in the Appellate Court, look for them to ditch that case and try another location.

    They have cases all over the country; the fact they'd even bother with this NY case involving a low level drug mule shows they'll try anything, they're just looking for a precedent. They will keep trying and backing out of cases as they lose, looking to have a case hit the Supreme Court with the ruling on their side, giving them the best chance of setting a favorable precedent.

    From what I read about the NY case, they already had plenty of evidence to convict the guy, the reason they wanted in his phone was a fishing expedition hoping to find others. Given their track record ("it is just this one phone") I'm not sure I really believe that anyone provided the password. That's probably just a convenient excuse for ditching this case where the initial ruling went against them.

    1. Doctor Syntax Silver badge

      Re: They'll keep trying

      "They will likely pick another case in the same judicial district as the San Bernadino case, where they already had a favorable lower court ruling"

      Reportedly when they got the initial ruling they'd told the court that it would be easy for Apple & Apple didn't get to say their piece. If that's the case there's probably a magistrate there now who's a little upset about the whole thing so I doubt another warrant would go through on the nod in that court.

    2. Anonymous Coward
      Anonymous Coward

      Re: They'll keep trying

      Yes, they will keep trying.

      From the article: With Apple taking a fierce public stance on the issue, with public opinion split, with Washington criticizing the FBI's approach, and with Congress indicating that it is prepared to get stuck into the issue, the FBI has clearly decided the best thing to do right now is get out the spotlight and work on a different strategy.

      No, it hasn't IMHO. The FBI knows full well that the public attention span is short, so they may even try again in a few months, or pop this one up when yet another atrocity has been committed. In that context I'm not quite sure what qualifies, though, is yet another shopping mall shooting sufficient, or do the perpetrators have to be foreigners too? I can never quite follow that.

      So yes, I agree - they will try again unless someone finally tells them they are not WRITING the law, only enforcing it. Easy one to forget with so many egos involved, I know..

      1. DougS Silver badge

        Re: They'll keep trying

        I could see them trying to find a pedo / child trafficking case next, hoping that might sway public opinion in a way that the terrorism case didn't. All they'd need is a phone they think "might" have been used to take such pictures and they can play the "please, won't someone think of the children" card.

        The FBI's fight is kind of funny in light of this - on the one hand they say tech companies shouldn't provide the public with secure messaging, on the other they need help tech companies' help in creating secure messaging for the DoD!

        http://www.pcmag.com/news/343996/darpa-wants-help-developing-a-secure-messaging-platform

        1. energystar
          Happy

          Government as a whole...

          Is not against strong encryption. Every modern economy needs it. Government is against UN-GUARANTEED strong encryption. Every Actor -even the most predominant- should be able to present content on Lawful Request, or to present a Guarantor on the same capacity, as should be more common on Actors lacking the capacity, as individuals. [Physical individuals are not in full capacity because, well, they are physical -not being here anymore, b. ex.-]

          The fight is about WHAT CONTENT SHOULD BE DECLARED PRIVATE and protected from Request.

          How could Law Enforcement know in advance which document objects are private? without opening them and violating its privacy? THEY CAN'T.

          Eventual RULING has to established based on EXTERNALITIES: Has that data object been exposed to the phone or ISP on deliberate and informed action of the Consumer? As an example.

          [FCC is already openly working on one of the many surfaces of this long due problem].

          1. DougS Silver badge

            "Un guaranteed strong encryption"?

            There isn't such a thing. Either it is strong and can't be cracked, or it is weak and can be cracked. Either someone else has the key, or only the end user has the key.

            Apple wants strong encryption where the user has the only key. If the key is shared with Apple, that would make that cache of millions of keys a pretty juicy target for compromise by hackers and governments.

            1. tom dial Silver badge

              Re: "Un guaranteed strong encryption"?

              There has not been, as yet, a US law or court order, to disable encryption or to require key escrow. That was tried and defeated quite decisively a couple of decades ago.

              Apple was asked to defeat certain device features that prevent pass code recovery a number of times, each applicable to a single iPhone. That is quite different from their being asked once for a solution that would defeat those device features on every iPhone. It differs even more from being asked to retain keys to allow decryption of iPhone data, and more yet from weakening the underlying encryption, as some others have claimed.

              Apple's code signing either is, or is not, secure. If it is, what they were asked to do would not have decreased by a consequential amount the security of iPhones in general. If it is not secure, iPhone users have a lot more to worry about than the rather limited software the court orders demanded.

  4. Youngone Silver badge

    Some thoughts

    I have two things to add here:

    Apple refused to comply in the San Bernardino case which prompts the question, if the government seizes my (encrypted) discs, can I refuse to comply? Thought not.

    Also, it is stated in the article that public opinion is split but I'm not sure that's the case.

    Surely the only people who think the FBI has a case here are those who stand to gain from Government over reach. Everyone else thinks its appalling.

    1. DougS Silver badge

      Re: Some thoughts

      If you live in the US, the fifth amendment gives you the right to refuse to hand over passwords for your encrypted disks. They can try to crack them, but it is their problem whether they succeed or not. This has been the verdict in appeals cases, but hasn't ever been ruled upon by the Supreme Court, but seems unlikely they'd do so.

      In the UK I believe you can be compelled to hand over passwords. Scary. Nice place to visit but glad I don't live there!

      1. Daniel B.

        Don't fear the reaper

        In the UK I believe you can be compelled to hand over passwords. Scary. Nice place to visit but glad I don't live there!

        Do fear the RIPA.

      2. Bloodbeastterror

        Re: Some thoughts

        ...UK... "glad I don't live there!"

        My children were able to go to school without me worrying if they were going to be massacred.

        RIPA is a vile piece of legislation introduced and used by vile politicians but it's a small piece of British life, much smaller than the gun crime on the other side of the water which puts all of you at risk.

      3. DavCrav Silver badge

        Re: Some thoughts

        "In the UK I believe you can be compelled to hand over passwords. Scary. Nice place to visit but glad I don't live there!"

        Much of the developed world says that about the US. Guns everywhere, no universal healthcare, no job protections. Scary place.

        1. badger31

          Re: Some thoughts

          Not to mention the US 'justice' system. Innocent people pleading guilty because they are shit scared of the ridiculous sentences they could face if they don't. Just look what happened to Ross Ulbrecht when he didn't do a plea deal. Definitely not somewhere I'd like to live.

      4. Cynic_999 Silver badge

        Re: Some thoughts

        "

        In the UK I believe you can be compelled to hand over passwords. Scary. Nice place to visit but glad I don't live there!

        "

        You think it's less scary to risk being shipped to an offshore prison camp for life, where you are tortured without any prospect of a trial ?

      5. Brangdon

        Re: Some thoughts

        I think you'll find the All Writs Act overrides the fifth amendment, at least in the opinion of the Justice Department. For example, a chap in Philadelphia has been held for 7 months for refusing to un-encrypt his hard drives. He has not been convicted, or even charged, with any crime. He'll be held until he gives up his passwords.

        http://arstechnica.com/tech-policy/2016/04/child-porn-suspect-jailed-for-7-months-for-refusing-to-decrypt-hard-drives/

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